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Neil Gorsuch Just Upended the Conservative Legal Project

The conservative justice’s ruling in favor of gay, queer, and transgender workers shows the limits of the right’s Faustian bargain on judges.

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Title VII of the Civil Rights Act of 1964 forbids employers from discriminating against workers on multiple grounds, including their sex. On Monday, the Supreme Court ruled that the sex-discrimination provision also protects gay, lesbian, and transgender Americans in the workplace nationwide. The landmark ruling is matched only by Obergefell v. Hodges as a victory for LGBT rights at the nation’s highest court.

“The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions,” Justice Neil Gorsuch wrote for the court in a 6–3 ruling. “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Chief Justice John Roberts and the court’s four liberal justices joined the opinion.

Beyond its practical implications for millions of Americans, the ruling is a bracing defeat for social conservatives, the Trump administration, and the conservative legal movement. Legal conservatives have long justified their support for Trump by citing his success at placing like-minded jurists on the federal bench, with Gorsuch as the foremost example of their victory. Monday’s ruling suggests that the reliably conservative Supreme Court majority sought for so long by right-wing legal activists may not be quite as reliable as it seems—and that their moral and ethical sacrifices to pursue it may have been in vain.

The court’s decision came in three intertwined cases. One of the two cases on sexual orientation, Bostock v. Clayton County, involved Gerald Bostock, a county child-welfare advocate in Georgia who was fired after his co-workers learned that he played for a local gay softball league. The other case, Altitude Express v. Zarda, involved Donald Zarda, a skydiving instructor in New York who was fired a few days after he told two customers that he was gay. (Zarda died in a skydiving accident during litigation, but his estate continued it on his behalf.)

The gender-identity case, R.G. & G.R. Harris Funeral Homes v. EEOC, centers on the funeral home’s firing of Aimee Stephens in 2014. Stephens, a transgender woman, told my colleague Melissa Gira Grant that she wrote a letter to her boss at a Michigan funeral home to inform him that she would be going by a different name and wearing work-appropriate clothing that reflected her gender identity going forward. Her boss fired her two weeks later, and claimed in litigation that he thought she would become a distraction for grieving families. (Stephens died of a kidney ailment in May.)

Bostock, Zarda, and Stephens all argued that their firings are prohibited by Title VII. The landmark 1964 civil rights law does not explicitly mention sexual orientation or gender identity as characteristics for which workers can’t lawfully face discrimination. But the plaintiffs, drawing upon decades of Title VII case law, argued that their dismissals fall under the law’s provisions against bias on the basis of sex. “When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII,” Pamela Karlan, who argued for Zarda in October, told the court during oral arguments in May.

The Supreme Court itself has often embraced a reading of the provision that may not reflect what its authors in 1964 had imagined. In 1998, for example, the justices unanimously sided with a male offshore oil-rig worker who sued his former employer under Title VII after facing persistent sexual harassment from his male co-workers. “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” Justice Antonin Scalia wrote for the court, “and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Indeed, when Title VII was drafted in 1964, the American Psychiatric Association classified homosexuality as a mental illness, and the states criminalized same-sex sexual relations. And while transgender Americans lived and died at the time, it would be decades before federal laws explicitly recognized gender identity in any form. “This court has recognized again and again forms of sex discrimination that were not in Congress’s contemplation in 1964,” Karlan told the court. “In 1964, those were the days of Mad Men, so the idea that sexual harassment would have been reached—most courts didn’t find sexual harassment to be actionable until this court did.”

These arguments posed a thorny challenge for the court’s five conservative members. Legal scholars and jurists on the right typically read federal and state laws through the lens of textualism, a method of interpretation where statutes are understood by their textual meaning and not by the intent or wishes of their drafters. Proponents of both textualism and originalism, the preeminent conservative method for interpreting the Constitution, often claim that these methods are neutral tools for resolving cases instead of a thinly disguised veneer for an individual judge’s preferred outcome.

To apply a textualist approach in this case, however, would lead to a decidedly nonconservative result: sweeping legal protections for gay and transgender Americans in the workplace. That appeared to weigh on some of the justices’ minds. “I’m with you on the textual evidence,” Gorsuch told David Cole, an American Civil Liberties Union lawyer who argued for Stephens. “It’s close, OK? We’re not talking about extra-textual stuff. We’re talking about the text. It’s close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that Congress didn’t think about it, and that [it] is more effective, more appropriate, [as] a legislative rather than a judicial function?”

“That’s it,” he added. “It’s a question of judicial modesty.”

In the court’s opinion on Monday, Gorsuch turned his question’s implications around. “When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us,” he wrote. “As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.” In his view, to deny gay and transgender Americans the protection of Title VII would count as diminishing it.

His approach drew heavy criticism from three of his conservative colleagues. “The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled,” Justice Samuel Alito wrote in his dissent, joined by Justice Clarence Thomas. “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriatedthe theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”

The dissenters argued that Gorsuch and the majority simply rewrote Title VII’s scope to accommodate gay and transgender Americans. “There is only one word for what the Court has done today: legislation,” Alito wrote. “The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.” He argued that discrimination on the basis of sex is inherently different from discrimination on the basis of sexual orientation or gender identity, noting that Congress has sought to amend various civil rights statutes to explicitly address those types of discrimination.

But Gorsuch argued that the majority’s conclusion sprang naturally from the law’s plain text. It is functionally impossible, he argued, for employers to discriminate against gay or transgender employees without making judgments about them based on their sex. He posed a hypothetical involving two identical employees, one male and one female, who are both attracted to men. “If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague,” he explained. Gorsuch applied the same logic for transgender employees: “If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” In both circumstances, an employee’s sex “plays an unmistakable and impermissible role” in their firing.

Gorsuch also turned the implicit accusations of heresy back against his colleagues. In his own dissent, Justice Brett Kavanaugh argued that neither Title VII’s authors in 1964 nor Congress itself since then had suggested that the provision’s ban on sex discrimination also applied to sexual orientation and gender identity. “For several decades, Congress has considered numerous bills to prohibit employment discrimination based on sexual orientation,” he wrote. “[Although] Congress has come close, it has not yet shouldered a bill over the legislative finish line. In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views.”

In response, Gorsuch suggested that his colleagues were relying upon legislative history to bypass the law’s plain meaning, an approach that Scalia famously spent decades crusading against. “Rather than suggesting that the statutory language bears some other meaning, the employers and dissents merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text,” Gorsuch responded. “When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.” This approach, Gorsuch concluded, was incompatible with their obligation to interpret and apply the law as it’s written.

In theory, legal conservatives should have celebrated Monday’s decision. Many of them have long criticized rulings by liberal justices and judges for allegedly reflecting their own policy preferences instead of the law or the Constitution. Indeed, they touted doctrines like textualism and originalism as ideal methods of judicial reasoning because they could help eliminate such biases. Monday’s ruling should be seen as a vindication of sorts for that reasoning: a landmark ruling written by a conservative justice in textualist terms that runs counter to conservatives’ preferred policy outcome.

But the first response from the conservative legal movement was far from celebratory. “Have no doubts about what happened today: This was the hijacking of textualism,” Carrie Severino, the president of the Judicial Crisis Network and a leading booster for right-wing judicial nominations, wrote on Twitter shortly after the decision came down. “You can’t redefine the meaning of words themselves and still be doing textualism. This is an ominous sign for anyone concerned about the future of representative democracy.” Ed Whelan, a prominent conservative lawyer and legal activist, posted only a short, cryptic tweet after the ruling came down: “But Gorsuch?”

Whelan’s tweet referred to a common response among conservatives, particularly in the legal realm, when faced with President Donald Trump’s flaws and misdeeds. All of the moral and ethical compromises that came with supporting Trump, they concluded, could be justified by his role in shifting the federal courts further to the right than any of his predecessors had done. During the Federalist Society’s 2017 convention, a right-wing group even passed out red stress balls bearing Gorsuch’s image and the two-word phrase.

Whether the conservative legal movement will fully apostatize Gorsuch for the heavy blow he delivered to its policy goals remains to be seen. But his role in Monday’s ruling underscores the real problem with Faustian bargains like the one it struck to reshape the federal judiciary: The devil often fulfills them in unexpected ways, and he doesn’t accept refunds or returns.